Caldwell Denied, Caldwell Wins

The most recent Establishment Clause lawsuit presented to the Supreme Court, Caldwell v. Caldwell (no relation), was denied a writ of certiorari by the Court today. The suit was filed by Jeanne Caldwell, wife of the infamous Larry Caldwell (who is known for filing frivolous lawsuits against teaching evolution). The defendant was UC Berkeley (coincidentally, the lead defendant is also named Caldwell), which maintains the Understanding Evolution website. The lawsuit was previously dismissed at the District and Circuit Court levels due to lack of standing. This denial of cert officially ends the lawsuit.


2nd Summary Judgment – Followup

This is a brief followup to my previous post.  In addition to the numerical error, there was some confusion from my readers about the use of the original expert witness reports.  The original expert witness reports, which were timely, covered the seven courses named in the complaint.  However, they did not address the as-applied challenges to the individual course rejections, only the facial challenges to the policies.  When the plaintiffs finally identified the 41 course rejections they were challenging, they dropped two of the original seven from the list, and then three more after UC objected.  This left 33 new courses (not offered by Calvary Chapel), four original courses offered by Calvary Chapel, and one original course not offered by Calvary Chapel.  ACSI submitted supplemental reports/affadavits (they submitted them as both types of documents just in case one type was precluded) for all 38 of the courses, this time arguing specifically for the as-applied challenge (and specifically for unreasonableness).  The judge rejected the supplemental reports, leaving only the original reports for the 5 remaining courses named in the Complaint.

As I noted, these original reports only addressed the facial policies.  The evidence offered in a facial challenge can be used to demonstrate that the policy, on its face, is unreasonable.  But once that policy is determined to be reasonable (as was determined in the first partial summary judgment), the evidence offered must demonstrate that the course would not have been rejected by a reasonable person working under the guidelines of the policy.  In other words, did the course meet the requirements listed by the policy?  That is an entirely different kettle of fish.

So the plaintiffs tried to shoehorn their old evidence into the new standard of review.  The problem was, for each course, the evidence they provided failed to demonstrate that they had met the listed requirements for that type of course.  For example, one of the requirements for a literature course is that whole works be used as the primary text, not anthologies or short stories.  Rather than argue that they met the “whole works” req, ACSI argued that the other courses approved by UC had used texts by the same authors in the anthology ACSI used.  This analysis also failed to address whether the works of those authors in the approved courses were whole works or part of anthologies.

Of particular interest to many of my readers is the biology course.  Although UC challenged this course based on standing*, the judge declined to address the standing issue for this course (and since it was based on prudential standing, not constitutional standing, the judge could use his discretion on the issue).  Dr. Behe, a familiar face to those following creationism, provided the expert report. The portion of his report that ACSI offered up tried to demonstrate that the Christian textbooks met the state BOE standards as well as certain secular textbooks.  He did this by analyizing whether a topic was mentioned in the books (even going so far as to include misreperesenting a scientific claim as mentioning a topic, because a teacher could use that as a launching point for further discussion! – though he didn’t quite word it that way, of course).  His criteria was merely a mention of the concept, openly admitting “I did not consider how much detail or depth a text went into on a given standard.”  See pages 2-3.  The problem, aside from using a standard that UC is not obligated to accept, is that doesn’t meet the requirement for content – and Behe acknowledged what that requirement was.  Behe cites the requirements on page 17-18:

Certification Categories.  Generally, courses that are suitable for satisfying the minimum requirement will fall into one of three categories: 

  1. College preparatory courses in biology, chemistry, or physics.
  2. College preparatory courses which may incorporate applications in some other scientific or career-technical subject area, but which nonetheless cover the core concepts that would be expected in one of the three foundational subjects.  A few examples could include some courses in marine biology or agricultural biology, which may qualify as providing appropriate content in basic biology; and some advanced courses in earth and space sciences, which may provide suitable coverage of chemistry or physics.  These are only examples; other possibilities exist.  Hoever, it is emphasized that courses in this second category must cover, with sufficient depth and rigor, the essential material in one of the foundational subjects in order to qualify for “d” certification.

Behe then follows with the following observation: “It seems clear from this description that the university’s prime concern is that the “essential material in one of the foundational subjects” must be covered…”  Correct, but Behe neglected to mention the part about “with sufficient depth and rigor” – which he previously admitting not having evaluated.  Behe failed to produce evidence that the rejection was unreasonable because he abdicated the discussion of whether the course met the stated requirements.

In a similar vein, ACSI had no evidence for the unreasonableness of other course rejections.  The evidence ACSI produced was merely “a thin veneer” quickly destroyed by the judge.


*Allowing myself to get distracted tracking down whether UC objected to the course is the root cause of why I made the numerical error in the previous post.

-Edited for wordpress display issues (stupid indents not working with numbered lists)

2nd Summary Judgment In ACSI v. Stearns

On Friday, August 8, 2008, Judge Otero entered summary judgment against plaintiff ACSI in the Christian course evaluation case.  This resolved the remaining claims made by ACSI; the judge had entered partial summary judgment back in late March.  In a subsequent posting, I will analyze the earlier summary judgment.  This post is for last Friday’s ruling.

I have uploaded the ruling from the PACER online casefile (the only change being to rename the computer file) for the reader’s convenience.


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Religious Freedom Day – Virginia Statute of Religious Freedom

On January 16th, 1786, Virginia finally passed Jefferson’s Statute of Religious Freedom, nearly seven years after he first penned it.  It formed the basis of the Religion Clauses of the First Amendment, as well as serving as the model for many states’ constitutions.  I invite you all to read and reflect on the impact a single law can have.

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Religious Freedom Day – Memorial and Remonstrance

Jefferson’s Statute did not immediately get passed.  It languished until the second foundational document, Madison’s Memorial and Remonstrance, was produced.  Published on June 20, 1785, it contained the objections to a bill proposed by Patrick Henry the previous legislative session that would provide government support for Christian clergy.  It provided the impetus to pass Jefferson’s Statute of Religious Freedom.

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Religious Freedom Day – Notes on the State of Virginia

Via Ed Brayton, I am reminded that today, January 16th is Religious Freedom Day.  It is the anniversary of the enactment of the Virginia Statute for Religious Freedom in 1786.  The Statute is the model upon which the Religion Clauses of the First Amendment of the US Constitution is constructed, as well as many of the state constitutions.  By 1833, all states had officially eliminated establishment of religion.  Like many other laws, there are a series of documents leading up to the enactment, explaining the rationale behind the statute.  I am dedicating a short series of posts to the three foundational documents, including the Statute itself, that formed the basis of the Religion Clauses of the Constitution.

First in line is Query 17 of Thomas Jefferson’s Notes on the State of Virginia.  The front matter of the Notes states:

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Friday Fisking – The Fafarman Files #1

This is the first in a series of posts analyzing Larry Fafarman’s 20 criticisms of Judge Jones’ decision in Kitzmiller v. Dover.  It was originally posted at Larry’s blog on June 2, 2006.  I have made some edits.

 (1) For perhaps only the second time in American history (the Selman v. Cobb County evolution-disclaimer textbook sticker case was possibly the first), a judge ruled that something — irreducible complexity in this case — that makes no mention of anything related to religion and that contains no religious symbols constitutes a government endorsement of religion. Whether or not irreducible complexity is bogus science is irrelevant, because there is no constitutional separation of bogus science and state.

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